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W. B. LAWRENCE'S 



HISTORICAL DISCOURSE 



THE 



ORIGIN AND NATURE 



REPRESENTATIVE AND FEDERATIVE INSTITUTIONS 



OF THE 



UNITED STATES OF AMERICA 



ANNIVERSARY DISCOURSE, 



DELIVERED BEFORE THE NEW-YORK HISTORICAL SOCIETY, 



ON TH£ 19*^ OF APRIL, 1832. 



V 

Br WILLIAM BEACH LAWRENCE. 




jK/X -■■ PUBLISHED By THE REQUEST OF THE SOCIETY. 



N E W - Y O R K : 

G. & C. & H. C A R V I L L, 

NO. 108, BROADWAY. 



M DCCC XXXII, 



S\<'^ 



\(^ 



L,<^2- 



NEW -YORK 
L tf 1) \V I G &. T O L E F B E E, P R T N T E 

Ci'i-ner of Vesey roiu GreenvKh streets. 



Hall of the Historical Society, ) 

il, 1832. \ 



NeiD- York, 2^th April, 

Dear Sir, 

The Historical Society, highly gratified by your 
able and interesting Address, delivered before them on the 
19th instant, have this day held a special meeting, and, by a 
unanimous vote, instructed us to solicit from you a copy for 
publication. We hope for your assent to thisj-equest ; and, in 
performing this agreeable duty, we tender you our sentiments 
of respect and esteem. 

R. R. Ward, . 

J. W. Francis, v Committee. 

J. Delafielp, ^ 

To William Beach Lawrence, Esq, 



A DISCOURSE, &c. 



Mr. President, and Gentlemen of the Historical Society — 

On recurring to the volumes of your 
Transactions, and calling to mind the well-merited repu- 
tation of those by whom you have been, heretofore, ad- 
dressed on similar occasions, I feel an unaffected diffidence 
in performing the duty for this day assigned to me. When 
I, however, recollect that I have been, for several years, 
a member of an Institution established for the most laud- 
able purposes, which has not only been sanctioned by 
many of the founders of the Republic, but has been muni- 
ficently patronised by the legislature of the State, and that I 
cannot boast of having done any thing to advance the ends 
of our association, I do not consider myself at liberty to de- 
cline an invitation, flattering in itself, and by complying with 
which I may, at least, give an earnest of my zeal in a noble 
cause. 

The objects of the New- York Historical Society, as stated 
in the constitution, are " to discover, procure, and preserve 
whatever may relate to the natural, civil, literary, and eccle- 
siastical history of the United States in general, and of this 
State in particular." 



At the time; when this Institution was formed, its in- 
quiries were principally directed to investigations connected 
with the aborigines, or with our Colonial history. The events 
of the revolution, and the occurrences which led to our com- 
plex system of poHtical organization, were too fresh in the memo- 
ry of om* predecessors to be regarded as matters for antiquarian 
research. But, since our Society was commenced, upwards of 
twenty-seven years have elapsed,"^ and the political existence of 
our country already dates back fifty-six years, occupying a 
space of time more replete with important events not only to 
the inhabitants of these States, but to the whole of Christ- 
endom, than any other equal period in the annals of civiUzed 
nations. 

I trust then that, in selecting, as the subject of this morn- 
ing's remarks, the origin and nature of that happy combina- 
tion of the representative and federative systems, which is ex- 
hibited in the institutions of our country, I shall not be consi- 
dered as deviating from the legitimate purposes of our asso- 
ciation. 

In pursuing the course which I have marked out for my- 
self, I shall not attempt to enlist you in any discussions on the 
origin of civil society. What were the political systems 
adopted by the immediate descendants of our primeval ancestors 
may constitute appropriate inquiries for the leisure of European 
scholars, but it is not necessary for any elucidations required 
by our present investigations to recur to the patriarchal theory, 

* The New-York Historical Society was instituted 10th Decembe/^ 
1804, and incorporated 10th February, 1809, 



«o favorable to the advocates of the divine right of kings, or 
to the doctrine of the social contract, to which, however, greater 
practical approximations are to be found in our state and] ge- 
neral conventions, than in the organic assemblies of any other 
people. And, though it is difficult in an advanced state of so- 
ciety, when history unfolds the doings of distant ages, always 
to distinguish what we owe to the experience of other coun- 
tries, from what may be justly deemed the suggestions of our 
own understandings, and the results of the circumstances, by 
which we are surrounded, it may be further observed, that 
neither the theocracy of the Hebrews, nor the aristocratic and 
democratic institutions, which, at different periods prevailed in 
the Grecian Republics and in the Roman commonwealth, 
would throw much light on the American constitutions. 

Though inhabiting the territory, which was once the hunt- 
ing ground of numerous Indian tribes, no amalgamation ever 
took place between the Aborigines and their European con- 
querors. Were it not, indeed, for the few names of places not 
traceable to other sources, and which are intermixed, without 
much regard to the rules of taste, or to any known association 
among ternis deduced from ancient mythology and European 
geography, the people of our seaboard might, ere this, have for- 
gotten that any former race ever inhabited these States. Of 
the laws and institutions of savages, with whom we never had 
any thing in common, except the occupancy, at different pe- 
riods, of the same country, and of whose very costumes and 
distinguishing features a vast majority of the citizens of the 
United States are as ignorant as the inhabitants of London 



and Parisj it is hardly necessary to assure an American audi- 
ence, that no vestiges are to be found in the political systems 
of the present day. 

It is rather in the forests of Germany than of this continent, 
that we are to look for the elements of our institutions. The 
citizens of the United States are, with exceptions to which it 
is not important for our present purpose to allude, of European 
descent ; and the States, included within the bounds of our 
original confederacy, were settled under circumstances, which 
would natmally induce their inhabitants to incorporate the 
principles of civil liberty among the tenets of their political 
creed. 

Independently of the individual emigrants, who have re- 
sorted to America from almost every nation of the earth, the 
origin of the population of the old Thirteen States is to be 
traced to settlements from the British Isles, Holland, and 
Sweden, formed under the authority, or at least, with the 
sanction of their respective governments. But the first at- 
tempt at European colonization, within the present limits of 
the United States, was made in Florida by some French Pro- 
testants, as early as the year 1562. The conflicting claims 
of Spain, however, defeated this enterprize, and it is to the 
compulsory departure of the Huguenots, occasioned by the re- 
vocation, more than a century afterwards, of the Edict of 
Nantes, that we are indebted for many families entitled to be 
ranked as compeers of the Plymouth pilgrims, and whose 
descendants, in this State and in Carolina, have repeatedly 
shown themselves worthy of progenitors, who nobly set at 



naught all considerations which came in collision with the 
dictates of conscience. 

Sweden contributed to no great extent to the colonization of 
America. The territory on the Delaware Bay, to which the 
appellation of New Swedeland was given, was always claimed 
by the Dutch, as falling within their limits, and it was sur- 
rendered to the last governor of New Amsterdam, several 
years before he was in turn compelled to yield his whole pro- 
vince to the superior power of England. Evidences, however, 
of Swedish domination may yet be found in the name of 
Christiana and other towns, and those few of our fellow- 
citizens, who can trace their origin to that nation, have no 
reason to blush for the country of their ancestors. 

The emigrations to America were made in the reign of that 
enlightened Prince, Gustavus Adolphus, and of course long 
before the absurd career of the madman of Bender, the Quix- 
otic Charles, had deprived Sweden of that ascendency among 
the powers of the north, which, from the period of her escape 
from the unhappy union of Calmar, she had always main- 
tained. 

The early introduction of the reformation into the Scandi- 
navian kingdoms had led to that freedom of inquiry, to which 
a religion relying exclusively on the sanction of authority 
may be deemed, in some degree, inimical ; and at the time, of 
which we are now speaking, the revolution of 1680, by 
which the power of the three estates was prostrated, and the 
senate rendered a mere privy council of the monarch, had not 
been consummated. 



10 

To the people of this State the voyage of Hendrick Hud- 
son in 1609, who, though an Englishman, discovered, while 
in the service of the United Provinces, the river, which bears 
his name, and the subsequent colonization of New- York and 
New- Jersey by the Dutch are subjects of especial interest. 
There are few of those, who honor me by their presence, in 
whose veins does not flow some portion of the blood of the 
countrymen and contemporaries of patriots, who, disregarding 
the immense distance, which separated the burghers of the 
Netherlands from the King of Spain and the Indies, had yet 
the courage to defend in the dykes and morasses of Holland 
the exercise of their religion, and the pohtical rights of man 
against the attacks of the most powerful potentate in Europe. 

It was, indeed, long before the treaty of Munster * had 
given a formal sanction to Dutch hberty and while the inde- 
pendence of the States-General was yet hable to be assailed 
by their former haughty masters, that New Amsterdam was 
founded. It is, how^ever, due to historical truth to observe, 
that in the system of government, which w^as adopted for the 
New Netherlands, and which vested all executive, legislative, 
and judicial functions in the Governor and his Council, we in 
vain seek for those guarantees against oppression, ever deemed 
essential in a code of British origin. 

The circumstances, under which the Dutch possessions 
were, in 1664, surrendered to England are in no wise dis- 
creditable to the gallant officer then at the head of the go- 

* This treaty was signed by the respective plenipotentiaries of Spain 
and the United Provinces, 30th January, 1648. 



11 

veinment, and notwithstanding the temporary recovery of 
this city, in 1673, by the original settlers, the rights of con- 
quest were exercised with so much lenity, as to induce most 
of the prominent colonists, including Governor Stuyvesant, 
to remain on their estates. The recognition, by the British 
kingdoms of the Stadtholder of the United Provinces* as their 
Sovereign, which happened a few years afterwards, must also 
have gone far towards removing from the minds of the most 
fastidious all repugnance to yielding to the inevitable fortune 
of war. 

Without adverting to the many worthy illustrations, fiir- 
nished by the history of our Dutch forefathers, of the bene- 
ficial effects of honorable frugality and unspotted integrity in 
the ordinary pursuits of life, the very names of several of those 
legislators and jurists, of whom our state is justly proud, are 
calculated to remind us of our manifold obligations to that 
country, which not only set us a glorious example in the 
career of freedom, but was once as pre-eminent among com- 
mercial nations, as the United States, unless unwise legisla- 
tion should counteract the bounties of Providence, are assur- 
edly destined to be. 

The motives, which actuated the Plymouth pilgrims, who 
had, indeed, first fled to Holland as a refuge from oppression, 
and the other eastern colonists in seeking a country, where 
they might be safe from the tyranny of the Stuarts, and be 
permitted to practise their rehgious duties, according to theii" 

* William III. of England. 



12 

own views of such obligations, have been portrayed, by gifted 
sons of New-England, with an eloquence, which it would be 
presumptuous in any ordinary writer to attempt to emulate. 

The primary object, which led the Virginia Company to 
undertake a settlement on our continent, was the discovery of 
mines of precious metals, and the colonists, who originally 
established themselves at Roanoke and on James's river seem 
to have been influenced by similar considerations. But the 
success at home of that party to which the eastern colonists 
originally belonged, and the temporary abolition of the royal 
authority made America a land of refuge for the adherents of 
the unfortunate Charles, and was the cause of the expatriation 
of many who were placed, by their rank and education, in a 
condition far beyond that of ordniary emigrants. 

To the Catholic emigration under Lord Baltimore, which 
took place before the civil wars, we may trace the origin of 
many of the distinguished citizens of Maryland, amoug whom 
stands conspicuous the surviving signer of the declaration of 
American independence. 

The restoration of EngUsh royalty was also, as every 
change in the parties of revolutionary France has of late years 
been, the signal for the exile to our coiuitry of patriots, re- 
vered and respected for their virtues and their talents, and 
whose only crime w^as an inability to accommodate their 
political principles to the doctrines of temporary expediency. 

But it is not my design to trace the settlement of the colo- 
nies in detail and describe the Protestant Germans,* who, at 

* Large numbers of Gernrans emigrated to Pemisylyania as early as 1682. 



13 

an early day, occupied no small portion of the state colonized 
by Penn — a name honorably associated with a most scrupulous 
regard to the rights of the aborigines. Much less can I at- 
tempt to enumerate the worthy accessions made, at a later day, 
to the population of independent America by the associates of 
Fitzgerald and Emmet — patriots, whose merit differs princi- 
pally from that of our revolutionary fathers in the opposite 
fate, which attended their respective efforts in the cause of 
national freedom. 

Our annals contain no fables of gods and goddesses, whichj 
though they may give to the history of Greece and Rome the 
interest of romance, also render it obnoxious to all the objec- 
tions attendant on the productions of fiction. The accounts 
of the colonization of America present a plain, unvarnished 
narrative. But, though the heterogenous sources, from 
whence our national character is formed, must necessarily 
have had an influence on their modification, our laws and in- 
stitutions were deduced from one country. In all the thirteen 
colonies the English common law was and still continues to 
be the foundation of the local jurisprudence. The decisions 
of Westminster-Hall and Doctors' Commons constitute to this 
day the precedents, which regulate our state and national 
tribunals. The systems of government, which were in force 
in all the colonies, for many years previous to our indepen- 
dence, were also derived from England. 

Before, however, we explore, the elements of our political 
institutions in the annals of the mother country, it may be 
well to consider for a moment the nature of the connexion 



14 

which existed, while they both acknowledged allegiance to the 
same King, between the different portions of the British Em- 
pire situated in Europe and America. 

It is a principle, abundantly recognised by writers on pub- 
lic law, that " when a nation takes possession of a distant 
country and settles a colony there, that country, though se- 
parated from the principal establishment or mother country, 
naturally becomes a part of the state, equally with its ancient 
possessions."* In the treaties, by which those districts of our 
country, not settled in the first instance from England were 
acquired, ample provision was made for placing the original 
colonists on the same footing w4th the new emigrants. Thus, 
whatever privileges attached to Britons at home, equally be- 
longed to the descendants of Europeans in the American pos- 
sessions, and this, indeed, is the language of many of the royal 
patents and charters, under which the settlements were made 
and the governments established in the colonies. 

In recurring to the origin of our system of government, I 
shall not inquire as to the precise period of the introduction of 
the feudal system into England, though this subject as well 
as the signification of the word " conquest," as applied to the 
invasion of the Normans, forms the topic of many elaborate 
treatises by writers, who are jealous of the martial reputation 
of their Saxon progenitors. 

The Saxons, who settled in England, could not have been 
strangers to fiefs, for they were an essential part of the institu- 
tions, to which they must have been accustomed in Germany, 

* Vatttti, B. 1. G. XVIIL ♦ 210, 



15 

and there is no reason for supposing, that their views were 
different from those of the other Gothic tribes. There is httle 
doubt that the feudal system, which has been aptly termed 
" the law of nations of western Europe," was in vigor in Eng- 
land before the Norman conquest, and the changes, which 
were supposed to have been effected by William and his suc- 
cessors were rather in the individuals, who were to enjoy the 
baronial privileges, than in the fundamental nature of the in- 
stitution. Indeed, as the vestiges of the Roman conquest 
were more scanty in England than on the Continent, the 
usages of the northern invaders were established there with 
less difficulty than in many other countries. 

An allusion to some of the leading characteristics of a sys- 
tem, the principles of which, even at this day, are interwoven 
with the laws, which determine the political relations of the 
citizen, as well as with those which regulate the rights of 
private property, seems called for by the nature of our subject. 

The spirit of the feudal institutions was national indepen- 
dence and freedom from oppression. When a province was 
conquered, the sovereign, or leader of the expedition, retained 
a portion for his domain, and dealt out the remainder of the 
territory among his subordinate chiefs. These grants, though 
fii'st made for life, subsequently became hereditary. The 
chiefs formed an order of nobility, and their tenants, whose 
obligations of service were not unlike those of the militia of the 
present day, constituted the military force of the state. Such 
also was the superiority of feudal tenures over allodial posses- 
sions, in an age, when physical strength was often a substitute 



16 

for reason, that the proprietors of the latter were generally 
happy to embrace the earhest occasion to place themselves in 
the relation of chents to powerful patrons. 

General councils of the nation were common to all the feu= 
dal states, and the independent spirit of their members may be, 
in some degree, inferred from the mode in which the sove- 
reigns of the 12th century were addressed, by their nobles. 
" We," said the barons of Castile— a country to which we 
should certainly not at this day look for barriers against the 
tyranny of the Crown—" We, each one of whom is as good 
as you, and who united, are much better than you, choose 
you for om- King and Lord, provided that you obseiTe our 
laws and privileges ; if not, not." 

There were many circumstances, which gave to the great 
body of the English people advantages not enjoyed by all the 
nations of the continent. England from the union of the 
Saxon heptarchy under Egbert, constituted but one kingdom, 
and from tlie final subjugation of Wales by Edward I. it em- 
braced by far the most populous and valuable portions of the 
island of Great Britain. Though the nobles were sufficiently 
elevated to maintain their due consideration in the state, and, 
when united, even to control the royal will, there were no great 
subordinate principalities, like those into which France was 
divided, the chiefs of which might singly set at naught the 
authority of the national sovereign. The contests in that 
kingdom were between the monarch and his great feudatories ; 
the people were regarded as of no importance by theii' imme- 
diate superiors. The enfranchisement or rather restoration of 



17 

the privileges of the Communes by Louis Le Gros,* (for the 
French towns had never entirely lost the franchises accorded 
to them by the Romans,) did not extend beyond the power of 
regulating their municipal concerns, and though, nearly two 
centuries afterwards, representatives of the burgesses were in- 
troduced into the States-General, which had been previously 
confined to the nobility and clergy, yet these national councils 
were only called together at the will of the sovereign and at 
long intervals. They were, indeed, so far from being deemed 
necessary to the ordinary action of government, that their 
sessions were suspended from 1614 to their final meeting in 
1788, a period of 174 years. The French ParUaments, 
which in some respects supplied their place, were in no wise 
representative bodies, and the check, which they practically 
exercised over the sovereign, was not founded on any consti- 
tutional right. 

In England the nobles, individually feeble, found it ne- 
cessary to strengthen their cause by courting the favor of their 
tenants and particularly of the burghers, whose wealth and 
importance advanced with the progress of knowledge and the 
arts. In the compact made between Henry I. and his nobles, 
it had been stipulated, that whatever immunities were granted 
by the crown to the barons, the barons should grant the like to 
their subjects. Even, in magna chart a, as wrested frofia 
King John, were contained provisions in favor of the^ liberties 
of the towns, and all fi*eemen, equally with the barons, were 

* In the 12th century. 



18 

protected from the imposition of taxes, without the consent of 
the " general council of the Idngdom." 

It is not unworthy of notice, as a distinguishing character- 
istic of the higher orders of the two great countries, to which 
we have referred, that in England the legal privileges of the 
aristocracy were early confined to the actual members of the 
peerage, which, though hereditary, was also accessible to all 
the people, as a reward for eminent talents and distinguished 
services ; while in France, they were extended to all the des- 
cendants of the first feudatory, and no patent of the sovereign 
could, in the public estimation, compensate for the absence of 
an ancient genealogy. Thus, the French system led, in pro- 
gress of time, to the division of the population into the two 
great classes of patricians and plebeians, which was probably 
one of the most efiftcient causes of the ferocity, with which the 
revolutionary struggle of the last century was conducted. 

Though, in magna charta^ the rights of eill freemen were 
formally recognized, provision is only made for convening or 
summoning the prelates and greater barons, and those, who 
held of the crown in chief, and no allusion is made to the 
principle of representation. 

The first ParHament with a lower house, composed of 
knights of the shire and members for cities and boroughs, was 
held in 1282, about eighteen years after the bui'gesses had 
been summoned to the great council, in the name of Henry 
the Third. From that period to the present, the nobility 
have constituted a separate house ; and the formal sanction 
of the King has been deemed necessary to the enactment of 



19 

all laws. The prerogative of parliament to interfere even 
with the order of succession to the crown was admitted at an 
early day, and was particularly recognized in 1496, in the 
settlement in favor of the house of Lancaster — a proceeding 
analogous to the one long subsequently adopted with reference 
to the present reigning family. The authority of the mo- 
narch was always checked by the power of the parliament 
over supplies, and by their participation in ordinary legislation ; 
but it was not till the revolution of 1688 — a period subsequent 
to the settlement of several of the colonies — that the sovereign, 
by the full establishment of the maxim, that the king can do 
no wrong, and of the co-relative proposition as to ministerial 
responsibility, became a mere pageant in the government. 

The essential principle, on which the elective franchise was 
originally founded in the country, from whence we deduce it, 
was the inherent right of every freeman to participate, either 
directly or by his representatives, in the legislation of the 
state, particularly in the imposition of taxes. At first the re- 
quiring of a freehold tenure did not operate to the exclusion of 
any, who were liable to military duties or to the pecuniary 
burthens, which were substituted for them. The municipal 
regulations of the different boroughs also made specific pro- 
visions, varying with circumstances, for that portion of the in- 
habitants, whose means of subsistence were unconnected with 
the possession of land ; and in many instances we find resi- 
dence alone deemed an adequate quahfication. I conceive it 
important to notice this historical fact, as it tends to remove 
from the modern advocates of universal suffrage, whatever 



20 

other objections may apply to their system, all charges of ra- 
dical innovation. In a country where land is divested of most 
of the feudal incidents, and in an age, when commerce and 
manufactures have assumed an importance, not inferior to that 
of agriculture, to consider one species of property, as alone en- 
titled to confer political privileges, would be to adhere to the 
letter of an institution and totally disregard its spirit. We 
find, indeed, that most of the states of our Union have adopted 
rules approximating to universal suffrage, and we may safely 
predict, that the measures now under consideration in the 
British Parliament, will be followed by more important 
changes, and that the time is not far distant, when the 
representation of rotten boroughs, with their diversified 
forms of elective fi:anchise, will be matters solely of historical 
curiosity. 

According to the common law of Christendom, even of those 
sovereigns, who disregarded the papal grants, every part of 
America, which had not been previously occupied, actually or 
constructively, by a people of European origin was regarded as 
a fit subject for colonization. This rale, however, did not au- 
thorize the formation of settlements by private individuals, but 
the sanction of a civilized state was considered essential to the 
protection of the emigrants. Companies were estabhshed in 
England, as well as elsewhere, for the founding of colonies on 
the American continent ; and under their direction, the first 
enterprizes of this description were conducted. Those reh- 
gionists, whose very expatriation was caused by their non- 
conformity to the established church, looked to their ancient 



21 

sovereign as the source of their power, and regulated their po- 
litical system, according to the authority, more or less Hmited, 
which he was pleased to exercise over them. Though the 
Plymouth settlers had not emigrated direct from England, 
and had landed beyond the bounds of the Virginia Company, 
from whom an original grant had been obtained, they deemed 
it necessary in the voluntary form of government, which they 
estabhshed, to acknowledge allegiance to King James, and to 
place themselves under his protection : nor did they feel secure 
in their civil and political rights, till they had procured a 
formal patent from the company in England, within whose 
limits they had fixed their residence. 

The governments in the American colonies were of three 
kinds, viz. : charter, royal, and proprietary. Of the last des- 
cription were the Jerseys, Pennsylvania, Maryland, and origi- 
nally Carolina. In these provinces the governor was nominated 
by the proprietor, who also enjoyed other prerogatives. In the 
royal governments, as well as in Massachusetts, under the 
new charter of 1692, the King retained the power of appoint- 
ing the executive. To the other colonies, all the rights of 
self-government, including the choice of their rulers, were ac- 
corded. 

Such indeed was the proud pre-eminence, which their 
charters gave to the New-England colonies over the sister pro- 
vinces, that they resisted with a zeal and an earnestness, 
wliich could not be surpassed by patriots contending for na- 
tional independence, all the attempts of James the Second, 

and his deputy Andross to withdraw these royal grants. 

4 



22 

Against Massachusetts, however, a formal judgment was ren- 
dered before the accession of the Prince of Orange ; and be 
sides other changes the new charter, as we have seen, reserved 
to the King powers, which he had not previously possessed 
with regard to the appointment of the provincial executive. 
The anecdote respecting the charter of Connecticut, which was 
said to have been preserved by being concealed in an oak 
now extant at Hartford, has been so often referred to, as to 
have almost become trite ; but it is no slight evidence of the 
compatibility of its provisions with the essential enjoyment of 
freedom, that this instrument remained till 1818 the funda- 
mental law of Connecticut, while at this day Rhode Island 
has no other state constitution than the royal charter of 14th 
Charles II. 

A distribution of the members of the legislatures into two 
bodies was early made in the several colonies. The upper 
house generally followed, in the mode of its appointment, the 
rule which applied to the choice of the governor, and was 
sometimes elective and at others named by the King or the 
proprietor. Hereditary senators, to correspond with the peer- 
age of England, were no where created. The ciicumstances, 
under which the emigrations to America were made, were 
totally different from those, which attended the irruption of the 
Gothic tribes into the Roman empiie. There were no military 
chieftains to present those claims, which every people is capable 
of appreciating. The leaders of the emigrants were, in ge- 
neral, destitute of that commanding wealth, without which a 
nobility is only ludicrous ; nor did they possess in a long line 



23 

of illustrious ancestry that hereditary distinction, which could 
serve as a substitute for personal merit. Thus, had not even 
the pre-conceived views of the colonists indisposed them to an 
aristocracy, the materials for its establishment could, with 
difficulty, have been found. 

One attempt, indeed, was made to introduce the gradations 
of European society into the American wilderness. The ce- 
lebrated Mr. Locke drew up a most complex code for 
Carolina. There was to have been a Palatine Court in 
Europe with barons, landgraves, and caciques in the co- 
lony to constitute a provincial aristocracy, and a system was 
proposed, which, if its object was the bringing into contempt of 
the nobility of Europe, was admirably adapted to its purpose. 
The whole scheme, Hke the numerous constitutions, which 
issued from the Parisian press during the French Revolution, 
proves the insufficiency of institutions devised even by the 
wisest of philosophers, when no reference is had to the cha- 
racter of the nation, among whom they are to be introduced. 
A government must conform to the people ; the people cannot 
and will not be accommodated to the government. It becomes 
us, however, to remark that the occasional errors, into which 
great men have fallen, constitute no argument against the 
study of government as a science. In the cases now referred 
to, they may be imputed to the substitution of pre-conceived 
notions for inferences, which should only be deduced from a 
careful investigation of facts. 

Mr. Locke's system was but short-lived. Resort was soon 
had to a form of government analogous to that of the royal 



24: 

provinces ; and we find Carolina in 1719 proclaiming, in lan- 
guage worthy of the sires of her revolutionary patriots, and of 
their distinguished sons, a determination, in which she was 
successful, to resist those acts of the proprietors, which were 
" contrary to the laws of England and the charter" — that is 
to say, to the existing constitution of the colony. 

The laws of descents, which early prevailed in some of them 
and the liberal principles of all their charters, gave to 
the eastern colonies a comparatively large body of electors. 
But the general diffusion of the right of suffrage was accom- 
panied by a correspondent extension of the advantages of or- 
dinary instruction. That system of common schools, which 
has long been the glory of New England, and which has of 
late years been successfully imitated in this state, was esta- 
bhshed by law in Massachusetts as early as 1647, and even 
nine years prior to that date, the same colony founded, for the 
higher branches of learning, a seminary,* which is still at the 
head of American colleges. 

In the southern colonies the nature of the population did not 
render the same legal provision for general education neces- 
sary, but many of those, who, during the war of the revolu- 
tion, w^ere conspicuous in the cabinet and the field, enjoyed at 
Oxford and Cambridge all the advantages, which those an- 
cient seats of learning could afford. 

The periodical press had not at the time, to which we are 
referring, attained those means of producing an influence on 

* Harvard University. 



25 

public opinion, which in England and this country have almost 
caused it to be considered a new element in the constitution. 
But it was not solely by the instruction obtained in ordinary 
schools and colleges, that the colonists were prepared for be- 
coming citizens of a great and independent nation. Though 
by far the largest portion of the emigrants had been induced 
to quit their own country on account of their religious tenets, 
the utmost diversity of creeds existed among them ; nor was 
there more lenity exhibited towards the minority of the sect, 
which happened to be dominant in a particular community, 
than had been shown by the papists to the protestants, or to 
the sectarians by the English church. The state of things 
described by Sir James Mackintosh, is as applicable to our an- 
cestors, as to those, by whom they had been persecuted on the 
other side of the Atlantic. " Every reformer," says he, " has 
erected, all his followers have labored to support, a httle papacy 
in their own community. The founders of each sect owned, 
indeed, that they had themselves revolted against th^ most 
ancient and universal authorities of the world; but they, 
happy men ! had learnt all truth, they therefore forbade all at- 
tempts to enlarge her stores, and drew the hne beyond which 
human reason must no longer be permitted to cast a glance.'"" 
The antinomian controversy led, in 1638, to the settlement 
of Rhode Island by a colony from Massachusetts ; and the 
early history of the eastern states is replete with similar dis- 

* History of England, vol. 1. p. 115. 



26 

putes. But whether the rival sects existed ia neighboring 
provinces, or the ministers of opposite creeds were permitted to 
inculcate their peculiar dogmas within the same precincts, 
such was the controversial spirit of the country, that the atten- 
tion of the people was intensely occupied with subjects admira- 
bly calculated to render the faculties acute, and to prepare the 
intellect for the investigation of poHtical problems. 

In considering the preliminary discipline of our country- 
men, it would not be proper to disregard the influence of the 
jury system. This mode of trial, which is said to have been 
introduced originally from Scandinavia into Normandy, and to 
have been incorporated by William into the English jurispru- 
dence, forms an important feature in our colonial institutions. 
The advantages and inconveniences arising from the determi- 
nation of facts by a jury, viewed with reference to the adminis- 
tration of justice, it is foreign to my purpose to examine. But 
to the information acquked by an attendance on the courts as 
jurors — to the necessity of balancing and deciding on conflict- 
ing facts, and hearing the opposing arguments of advocates, 
many of whom are distinguished as well for general informa- 
tion as for professional attainments, may be ascribed, in no 
small degree, the superior qualifications for a direct participa- 
tion in poUtical discussions, possessed by the freemen of Eng- 
land and the United States, compared with those of the 
people of France and other countries, which have attempted a 
representative government. Men, called on to decide respect- 
ing the life or property of a fellow-citizen, are elevated in their 
own estimation by a temporary assumption of the judicial cha- 



27 

lacter, and habits of reflection are almost imperceptibly engen- 
dered, which are not lost with the occasion, that creates them. 
It may, indeed, well be doubted, whether our local legislatures 
have not acted unwisely in permitting individuals to exempt 
themselves from attendance on juries by the performance of 
other services to the community, which, however meritorious in 
themselves, are wholly unconnected with the administration of 
justice or the execution of high political functions. 

We have already seen that, while the British subjects on 
both sides of the Atlantic owed an allegiance to a common 
sovereign, there was no more ground for the exercise of legis- 
lative authority over the colonies by the parliament in Eng- 
land, than there would have been for the passage of a law 
here with respect to the people of Great Britain. It is true, 
that, from the necessity of the case, a right on the part of par- 
hament to regulate the general trade of the empire was not in 
terms denied, but even the navigation laws were imperfectly 
executed, especially in New England ; and it was distinctly 
avowed by the legislature of New- York in 1764, that the 
power of the mother country to regulate trade was not to be 
interpreted, so as to authorize the imposition of duties for mere 
purposes of revenue. It was, indeed, only in accordance with 
this sentiment, that the first provincial Congress, held in 1775, 
declared " that the moneys raised as duties by the regulations 
of trade ought to be paid into the respective colony treasuries, 
and be subject to the disposal of their deputies." 

The right of self-legislation, and particularly of determining 
as to taxation, was not only every where asserted, but it was 



28 

formally proclaimed by several of the colonies to be a funda- 
mental principle. Virginia, in 1 624, passed an act declaring, 
that " the Governor (who was appointed in England) should 
not impose any taxes on the colony, otherwise than by the 
authority of the general assembly." In New- York it was 
maintained in a legislative act, as early as 1691, that repre- 
sentation in the Assembly, by which taxes were imposed, was 
a right, that could not be denied, not a privilege which might 
be conceded or withheld at pleasure. Numerous other decla- 
rations of similar import will be found in the records of most 
of the colonies. An act of Massachusetts, passed in 1692, 
goes so far as to assert, that " the people of that colony can be 
touched by no law and by no tax, but of their own making." 

In perusing the colonial history of our state, and recurring 
to the disputes between the royal governors and the assem- 
blies, we are strongly reminded of the recent collisions between 
the corresponding authorities in a neighboring province. The 
application repeatedly made for a permanent revenue, to be at 
the disposal of the Governor and Council of New- York, re- 
sembles in many of its features those demands of the represen- 
tative of the Crown, which from 1822 to 1829 virtually sus- 
pended the sessions of the provincial legislature of Lower Ca- 
nada, and induced, in direct violation of a solemn guaranty to 
the contrary, made at the commencement of our revolution, 
the imposition of taxes by the authority of the British parlia- 
ment.* We may ask, is the parallel to stop here ? 

* By the declaratory statute of 1778, England relinquished all right to tax 



29 

Enough, it is believed, has been said to show the character 
of those, by whom the colonies were settled, as weU as to point 
out the sentiments of political freedom, which prevailed in 
them, while they were still connected with the mother coun- 
try. It is, however, not irrelevant to our purpose to observe, 
that, while a virgin soil every where afforded ample remu- 
neration to well-directed industry, the bounties of Providence 
were not furnished with the luxuriance, with which they are 
supplied to the inhabitants of more favored latitudes. The 
inconveniences of new settlements in northern regions re- 
quired the constant exercise of masculine energies. 

Nor in an estimate of national character are we to disregard 
the fact that negro slavery, which, whatever weighty objec- 
tions may apply to it, by raising the whites above the per- 
formance of low and menial offices, gives to the free popula- 
tion a high sense of personal dignity and independence, was 
early introduced into the southern States. 

Of the elevated views of those, by whom our independence 
was proclaimed, the nature of the dispute and the manner in 
which it was conducted afford the best illustration. The 

her colonies, leaving it to them to lay duties on themselves to be applied 
to the support of their own institutions and establishments and by the law 
of 1791, (Mr. Pitt's act) the control over all means arising from the regula- 
tion of trade was vested in the colonial legislatures. The refusal, how- 
ever, of the Governor to permit any scrutiny into the expenditures of the 
civil list having led the Assembly of Lower Canada to withhold all other 
appropriations, by an act of parliament passed in 1822 (the Canada trade 
act) all taxes then in force were imposed on the province for five years. 

5 



30 

war of the revolution was not a resistance to burthens into- 
lerable in amount, but, Uke Hampden's refusal of the ship- 
money — a vindication, at the very threshhold, of the consti- 
tutional rights of freemen. 

In the formation of our institutions we had nothing to learn 
as to the nature of representation. In calling conventions and 
establishing the internal government of the several colonies, 
our ancestors did not examine the disquisitions of an Aristotle 
or a Plato, -or appeal to a Locke for a new plan, by which to 
distribute their fellow-citizens into imaginary classes. All 
that they did, all that was attempted, was to embody in a few 
concise articles, with some slight modifications, those usages 
and that system, deduced from the mother country, which 
had been already accommodated to their wants and actual 
condition. But while we do justice to the pure and disinte- 
rested motives of those patriots of the revolution, who partici- 
pated in the organization of our government, an American 
must be very ignorant of the condition of the great body of 
the people, if he supposes, that any attempt to introduce the 
monarchical or aristocratical distinctions of Europe into our 
new States, would have resulted otherwise than in the most 
signal defeat. Indeed, the manifestation, at a subsequent 
period, of a predilection for institutions of a less popular cha- 
racter than those recognized in our federal constitution, 
tended greatly to diminish the influence of one* of the most 
distinguished of our early statesmen, as well as to throw a 

* Alexander Hamilton. 



31 

cloud over the whole political party, in unison with which he 
was supposed to act. 

In examining the provisions of the several constitutions, 
adopted on our separation from England, we find the pro- 
gress, which the principles of religious freedom had made 
during the century and a half, which had intervened between 
the settlement of the country and the independence of the 
United States. It is true, that the broad provision now con- 
tained in our national constitution, by which Congress are 
prohibited from making any law, " respecting an establish- 
ment of religion, or prohibiting the free exercise thereof," was 
not incorporated in all their fundamental codes ; nor were 
they all yet prepared, with the illustrious Jefferson, who 
equally gloried in being " the author of tlie declaration of in- 
dependence, and of the statutes of Virginia for religious free- 
dom," to make religious and political liberty march hand-in- 
hand. 

The constitution of Maryland, as originally established, 
excluded from office Jews and all others, who did not subscribe 
a declaration of belief in the Christian religion. In New 
Jersey and North Carolina, the constitutions only contem- 
plated the admissibility of protestants to public employments, 
and in some of the eastern states every individual was bound 
to contribute to the support of a public teacher of the gospel. 

Contrasted with the articles of the Spanish American con- 
stitutions, establishing the Roman Catholic church without 
toleration of any other, the highest encomiums are due to the 
framers of even the least liberal of our constitutions. But 



32 

what comparison can be attempted between our ancestors, and 
the people of different origin, who have pretended to emulate 
theii- noble career ? Much less can we draw a parallel between 
men deriving their notions of liberty from the freest nation in 
Christendom, and the Americans of the South, who, hke their 
fellow-subjects in the peninsula, had been for centuries the 
prey of the vilest superstition and the most debasing tyranny. 
The experience of more than fifty years has shown, that 
no better method can be devised to advance the cause of true 
rehgion, than wholly to disconnect the ecclesiastical from the 
civil power. To this position, indeed, if it required confirma- 
tion, I might cite the testimony of an eminent prelate, whose 
untimely death, this Society, as well as the whole community, 
had occasion to deplore. It was, in addressing his congre- 
gations for the first time after his return from a country 
where the church forms an integral part of the institutions of 
the state, and where her dignitaries vie in wealth and in poli- 
tical influence mth the first nobles of the land, that Bishop 
Hobart referring to the fact, that " with the union of church 
and state commenced the great corruption of Clnistianity," 
exclaimed, " so firmly persuaded am I of the deleterious 
effects of this union, that, if I must choose the one or the 
other, I would take the persecution of the state rather than 
her favor, her frowns rather than her smUes, her repulses 
rather than her embraces." * We may, indeed, triumphantly 

* " The United States of America compared with some European 
countries, particularly England, in a Discourse, &:c. by the Right Rev. 
John Henry Hobart, D. D." page 35. 



33 

askj ia what part of Christendom can a more enhghtened and 
virtuous ministr)^, or a more moral and religious people b& 
found than within these States ? 

Nor was the federal part of our system unknown to the co- 
lonies, at the epoch of the declaration of independence. Our 
ancestors were not obhged to seek precedents for their new in- 
stitutions in the annals of the Grecian leagues, or in the tra- 
ditionary history of the aboriginal confederation of " the Five 
nations." A proposition for a Governor-General was made as 
early as the surrender of the charter of the Plymouth com- 
pany, and though it was then unsuccessful, a union was 
formed in 1643 of the colonies of New England, embracing 
Massachusetts, New Plymouth, Connecticut and New Haven. 
It lasted for forty years, and by the compact entered into be- 
tween them, powers were given to the commissioners, by whom 
their affaii's were managed, in soir e respects greater than those 
enjoyed by the continental Congress of the revolution. More 
general associations for temporary purposes had also been 
formed, particularly with reference to the disputes with the 
Indian tribes, and the menacing position of the French, whose 
possession of Canada always operated in favor of the con- 
nexion between the English colonies and the mother country. 
Schemes for a permanent arrangement among the colonies 
were suggested soon after their settlement, and in 1754, in 
compliance with the recommendation of the British Govern- 
ment, delegates from seven of them actually met at Albany. 
The plan for a union of all the colonies, drawn up on this oc- 
casion, proceeded, as is well known, from the pen of Franklin. 



34 

It contemplated a President-General, appointed by the 
Crown, and a Grand Council, to be named by the colonies 
through their legislatures. The functions of this body were 
to be directed to the relations with the Indian tribes, and to 
such other matters, as could neither be managed with conve- 
nience in England, nor by the separate, provincial legislatures. 
Fortunately this plan, the adoption of which might, by re- 
moving some causes of complaint, have prolonged our con- 
nexion with Europe, had the singular fate of giving satisfac- 
tion neither in England nor America, and it never went into 
effect. 

These proceedings, however, as well as those which took 
place in the Congress of 1765, convened for the discussion of 
colonial grievances, afforded excellent preparations for the more 
important acts which were to devolve on that assembly, by 
whom a new nation was hteraliy to be called into existence. 

When we reach the declaration of independence in 1776, 
and find the old Congress conducting war, making treaties 
with foreign powers, and the States regulating all matters of 
municipal concern, we have arrived at a period of our history 
which presents a full illustration of the union of the represen- 
tative and federative systems. But as the first notices of the 
British House of Commons, or even its present organization, 
offer but a very rude picture of the representative system, as 
now in exercise here, so in the distribution of powers between 
the general and state governments, even as fixed by the con- 
federation of 1778, we were very far from having attained the 
happiest arrangement of which the subject was susceptible. 



35 

The old continental Congress was a diplomatic, rather 
than a legislative body. The states were represented as in- 
dependent sovereignties, and Congress, instead of acting di- 
rectly upon individuals, could only make recommendatory 
suggestions, which might be carried into effect or not, . ac- 
cording to the varying views of the thirteen distinct legisla- 
tures. Our revolutionary fathers, who had emancipated us 
from foreign thraldom and achieved for us both liberty and in- 
dependence, would not have completed their noble work, had 
they not placed us in a position effectually to resist foreign ag- 
gression, and removed us from the danger of those intestine 
wars from which mere confederacies have never been exempt. 

The constitution of 1787, the phraseology of which it now 
appears from indubitable authority is justly ascribed to a former 
distinguished president of our Society,* and to which is at- 
tached the name of the father of his country, with those of 
many of his illustrious compeers, requires no encomium from 
any source. To analyse its peculiar provisions can scarcely 
be attempted at the end of a discourse already protracted be- 
yond the hmits usually assigned to such performances. I 
cannot, however, refrain from alluding to two points, by 
which it is distinguished from all previously existing attempts 
to form a federal government. I refer to the co-ordinate 
powers of the general and state authorities, and to the duty 
of the judiciary to determine on the constitutionality of an act 
of Congress, or of a state legislature. 

* Goiiverneur Morris. 



36 

Both the general and state governments are derived from 
the people, to whom all power, not granted in terms or by 
fair inference to the one or other set of agents, is reserved. 
Whenever the authority of the national government applies, it 
is of paramount obligation, and is, indeed, declared so to be 
in the instrument by which it is created, and which was sub- 
mitted to and approved, as fully as were their respective con- 
stitutions, by the people of the several states. In all matters 
not within the purview of the federal constitution, the state 
authorities may be supreme over their own citizens, if the 
local constitution has made them so ; otherwise, the power 
is reserved to the people in their primary capacity. _ In ge- 
neral, however, the grant of the legislative power is sufficiently 
ample to confer all the attributes of sovereignty not given to 
Congress. 

The United States, as well as the several states, are pro- 
vided with their own legislative, judicial, and executive de- 
partments, and neither authority requires the interposition of 
the other to aid it in the performance of its ordinary functions. 

It could not, however, be anticipated, that two co-ordinate 
powers would always avoid collision. (Questions, it might 
reasonably be supposed, would arise, where well-grounded 
doubts would be entertained as to the limits of the two autho- 
rities, both of which the citizen is bound to obey. It was 
therefore necessary to provide some means for settling them. 
To have confided their decision exclusively to the state go- 
vernments would have carried us back to the confederacy, and 
would have been attended with precisely those inconveniences 



37 

the existence of which induced the amendment of our poli- 
tical system. To render the constitution, with the treaties 
and laws made in pursuance thereof, obligatory on the judges 
of the several States, was not deemed a sufficient guaranty for 
uniformity of decision, or for the settlement of questions, 
where the conflicting rights of States, of citizens and foreigners, 
or of citizens of different States, might be brought into colli- 
sion. It was therefore determined, that, instead of leaving 
the ultimate construction of the constitution to a tribunal or- 
ganized under the authority of the people of one State, it 
should be referred to a judiciary emanating from the whole 
United States ; and to secure in this most important Court 
men of undoubted learning and disinterested patriotism, 
every possible precaution was taken. That the Supreme 
Court has ever been free from all undue attachment to the 
executive is hardly to be questioned. The judges can scarce- 
ly, from the tenure of their office, be all named by the same 
president, or even by the same political party. The spotless 
purity of the members of this tribunal, and the soundness of 
their decisions, are worthy of all admiration, and have acquired 
for them a reputation both at home and abroad, which could 
not have been the fruit of any political influence, however ex- 
tensive. " There is at Washington," says a distinguished 
foreigner,* " a power, which has neither guards, nor palaces, 
nor treasures : it is neither surrounded by clerks, nor over- 
loaded with records. Its magnificence consists in its justice, 

* M. de Marbois. 
6 



38 

and in the publicity of its acts. This power is called the Su- 
preme Court of the United States/' 

To the Supreme Court is confided the all-important duty of 
keeping together our complex system. Should Congress 
transgress theu' legitimate bounds, the citizen, who is prose- 
cuted for a violation of the law, may defend himself on the 
ground of its unconstitutionality, and though the act may have 
been passed in accordance with all the usual forms, if the 
Court find that it contravenes the constitution — the supreme 
law of the land — it would be pronounced void and of no eflfect. 
In the same way, state laws, on matters respecting w^hich 
Congress has exclusive jurisdiction, have been declared null. 

Warned by the experience of the confederacy, eflfectual care 
was early taken by Congress to prevent the power of the Su- 
preme Court, when exercised within its constitutional sphere, 
being rendered inoperative, by the refusal of the state tribunals 
to conform to its decisions, and, at the same time, means were 
afforded for avoiding all collisions between courts emanating 
from distinct authorities.* The decrees of the federal judiciary 

* In the cases involving the construction of the constitution, treaties, 
and laws of the United States, and in which an appeal is given to the 
Supreme Court from the highest tribunal of the state, in which a decision 
in the suit could be had, it is provided that "the writ (of error) shall have 
the same effect, as if the judgment or decree complained of had been ren- 
dered or passed in a Circuit Court (of the United States,) and the pro- 
ceeding upon the reversal shall also be the same, except that the Supreme 
Court, instead of remanding the cause for a final decision, may, at their 
discretion, if the cause shall have been once remanded before, proceed to a final 
decision of the same, and award execution.^^ — Judiciary act of 1789, sect. 25. 



39 

are not executed, like those of the Amphictyonic Council 
against the Phocians, by carrying war into a whole territory, 
but are rendered operative by the mild and peaceful means 
furnished by the forms of civil process. For the forty-three 
years that the constitution has been in operation, this power 
has been found adequate to all its proposed objects, and the 
act of 1789 still remains a monument to the fame ^ Chief 
Justice Ellsworth, infinitely more honorable than any which 
statuaries can erect. 

It is true, that disaffection has existed at different periods 
in various parts of our extensive empire, and the timid and 
the cautious have more than once feared for the safety of the 
republic. Our legal annals furnish examples of occurrences in 
Pennsylvania and Virginia exhibiting strong indications of re- 
sistance to the constitutional authority of the Supreme Court.* 

* The collision in Pennsylvania between the federal judiciary and the 
State authorities grew out of a question, which arose as far back as 1778, 
as to the power of the old continental Court of Appeals in prize cases, and 
it was immediately occasioned by a decree on the admiralty side of the 
District Court of the United States for Pennsylvania, (Olmstead vs. the 
Executrices of Rittenhouse,) which that Court was required, by a pe- 
remptory mandamus from the Supreme Court, (United States vs. Peters, 
5 Cranch, 115) to carry into effect. The object in view was the recovery 
of a fund, received by their testator, while treasurer of the state, which the 
respondents had, in pursuance of a state law passed in 1803, paid into the 
treasury, but which had been, by the old Court of Appeals, awarded to 
the libellants. To resist the process of the United States, the Governor, 
as he was required to do by an act of the legislature, called out the militia. 
The decree of the federal court was, however, executed by the marshal, 
and Chief Justice Tilgman, of the Supreme Court of Pennsylvania, re- 



40 

Even the State judges, in Massachusetts, did not always keep 
themselves free from temporary excitement, but abetted, by 

fused to release, when brought before him on habeas corpus^ one of the 
respondents, who had been taken into custody, by virtue of the attachment. 
The authority under which the mihtia had acted was subsequently declared 
void, and the Circuit Court sentenced (May 2, 1809) the ofiicers of the 
militia who had resisted the process of the United States to various terms 
of imprisonment. The general of the brigade, as well as several of his 
associates, was conducted to prison, and the constitutional authority of 
the federal judiciary was thus fully asserted. It was during the irritation 
created by this transaction that Pennsylvania passed resolutions, declaring 
" that no provision is made in the constitution for determining disputes 
between the general and state governments by an impartial tribunal," and 
instructing and requesting her senators and representatives to use their 
injluence to procure an amendment to the constitution to establish such a 
tribunal. But, notwithstanding these proceedings, such was the change in 
public sentiments, which a few years produced, that in 1830, the vote of the 
Pennsylvania delegation in the House of Representatives was unanimous 
against even considering a proposition to repeal the 25th section of the ju- 
diciary act. 

In the Virginia case, which involved the construction of the treaties of 
1783 and 1794, a writ of error was awarded, to the highest court of the 
State, and the judgment of that tribunal having been reversed by the Su- 
preme Court, (Fairfax's devisee, vs. Hunter's lessee, 7 Cranch, 603) the 
Court of Appeals was required to cause the original judgment, which that 
court had reversed, to be carried into execution. The state court denied 
the appellate jurisdiction of the federal judiciary in the case and refused 
obedience to the mandate. A writ of error having been awarded on this 
refusal, (1 Wheaton, 304) the jurisdiction of the Supreme Court was 
maintained, and though no change was made in the record of the 
Court of Appeals, the decision of the United States' Court has ever since 
been acquiesced in, as governing the title to the property in question. 



41 

iheir formal opinions,* (and at a time, too, when our country 
was at war with the most powerful nation in Christendom,) 
the resistance of the executive to requisitions of the National 
Government for the militia, since universally admitted to have 
been Vithin the President's legitimate powers. The hostile 
measures adopted by Ohio and Kentucky against the National 
Bank, the constitutionality and expediency of w^iich they are 
now among the most ready to admit, present further illustrations 
of the truth of our remarks. But for all apprehended difficulties 
time has hitherto proved a sovereign panacea ; and though in the 
Virginia case, already referred to, and, as it is understood, in one 
which has recently come up from another State, the local tri- 
bunal refused to alter its record according to the mandate of 
the Court, no effectual opposition has ever yet been made to 
the execution by its appropriate officers of the decrees of the fe- 
deral judiciary. The collisions, which now menace us are 
not, assuredly, to be lightly regarded. It is, however, satis- 

The final decision of the Supreme Court, in the last mentioned case, 
took place in 1816. It is worthy of remark, that, when the authority of the 
federal judiciary was attacked by Pennsylvania in 1808-9, by no State was 
it more zealously upheld than by Virginia. Her legislature, referring to 
the proposition for the establishment of a new tribunal to decide disputes 
between the general and state governments, unanimously declared, " that 
a tribunal was already provided by the constitution of the United States, 
to wit, the Supreme Court, more eminently qualified from their habits 
and duties — from the mode of their selection, and from the tenure of their 
offices — to decide the disputes aforesaid in an enlightened and impartial 
manner, than any other tribunal, which could be created." 
* See 8 Mass. R. 550. 



42 

factory to know, that to emancipate one of our Sister States 
from a species of population, of which, owing to the earlier 
settlement of this colony, we are happily free, while we pre- 
serve unimpaired the authority of the Supreme Court— the 
key-stone of the federal arch— requires but liberal appropria- 
tions from a redundant treasury. As to the discontent else- 
where prevalent — if our national legislature will only take for 
their guide the spirit of the constitution, and scrupidously ab- 
stain from imposing or continuing any unnecessary restric- 
tions on the freedom of industry, and from interfering in other 
matters not entrusted to them — we may calmly await the pe- 
riod when the passions of the day, will, as on previous occa- 
sions, yield to considerations of enlightened patriotism. 

Nor are associations, Mr. President, such as ours, without 
their utility in contributing to the perpetuation of a system 
which has fully solved the problem, how to produce "the 
greatest happiness of the greatest number." No researches 
can be made into our history, without our being constantly 
reminded of the thousand ties by which all the colonies were 
early connected, while a lecollection of the efforts made in 
common in a cause which has been the admiiation of man- 
kind, and in the formation of a constitution, which is univer- 
sally esteemed a model for the imitation of all free nations, is 
eminently calculated to induce us to surrender all sectional 
feeUngs, and to sacrifice all sordid views at the altar of the 
Union. 

As Rome extended her conquests, not only were the inha- 
bitants of the other Italian towns incorporated with her, but 



43 

the rights of citizenship were accorded to whole nations of 
barbarians, as they were termed, whose local position forbade 
any real participation in political power. The consequence 
was, that abuses of every sort were practised by the func- 
tionaries in the remote provinces, from whom all real amena- 
bihty to the Senate and people of Rome was removed, and the 
division of the empire, had no other causes contributed to it, 
must have been brought about by the inability of the superin- 
tending authority to afford that protection, for life and pro- 
perty, which is the great end of civil government. 

The unwise rejection of the federative system has, for the 
last half century, placed the people of France at the mercy of 
the mobs, who have successively obtained the control of the 
capital, while the practical inconveniences of a republic, one 
and indivisible, tended most effectually to reconcile the pro- 
vinces to the usurpation of Napoleon, and to the downfal of 
democratical institutions. 

In the United States, the powers committed by the people 
to their state governments place the inhabitants of the most 
distant parts of the Union on an equality with those in the 
neighborhood of the federal district, and indeed the citizens 
of .Maine and Louisiana enjoy a participation in political 
power even denied, for peculiar reasons, to those who are do- 
miciliated within the very precincts of the capitol. The rally- 
ing points, also, which the States furnish for the vindication of 
political rights, afford the most effectual guarantees, which 
human ingenuity can devise, against the usurpation of future 
Napoleons. 



44 

At the same time, our federal institutions enable us, in our 
relations with foreign powers, to assume that attitude, and 
command that consideration which would never be accorded 
to inconsiderable states or principalities. Our citizens, instead 
of being restricted to the circuit of a few miles around the spot 
in which they were born, have secured to them an almost in- 
terminable range of country, in which to advance their for- 
tunes and provide for their happiness. And whatever may be 
the policy of their own or other governments as to a free inter- 
change of commodities, they are sure of having a market, for 
their produce and manufactures, which may well compare 
with the one, which the whole world afforded a century since. 

May we then ever bear in mind, that, with the preservation 
of both the general and state governments, in their appro- 
priate spheres, our national independence and individual li- 
berties are indissolubly connected ! On the continuance of the 
one depends our immunity from foreign aggression and in- 
ternal dissentions, while the other is required to protect us from 
what is even more to be deprecated, that tyranny and despot- 
ism, which would but too probably follow in the train of con- 
solidation. 






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